Berkeley weighs unprecedented limits on tobacco sales

Cashier Imad Awad checks on customers at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store's income. less

Cashier Imad Awad checks on customers at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store ... more

Photo: Santiago Mejia / The Chronicle

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Cigars fill the shelves at GSM/Fine Foods to purchase rolling paper, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store's income. less

Cigars fill the shelves at GSM/Fine Foods to purchase rolling paper, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or ... more

Photo: Santiago Mejia / The Chronicle

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Boxes of cigarettes fill the shelves at GSM/Fine Foods to purchase rolling paper, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store's income. less

Boxes of cigarettes fill the shelves at GSM/Fine Foods to purchase rolling paper, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of ... more

Photo: Santiago Mejia / The Chronicle

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Gary Bland buys a box of cigarettes from Imad Awad at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store's income. less

Gary Bland buys a box of cigarettes from Imad Awad at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or ... more

Photo: Santiago Mejia, The Chronicle

Image 5 of 6

A customer purchases cigarillos at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store's income. less

A customer purchases cigarillos at GSM/Fine Foods, Monday, April 13, 2015, in Berkeley, Calif. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is ... more

Photo: Santiago Mejia, The Chronicle

Image 6 of 6

Roberto Scataglini walks into GSM/Fine Foods in Berkeley to purchase rolling papers. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near Berkeley High School and the ordinance could force the business to close as tobacco products are a large source of the store’s income. less

Roberto Scataglini walks into GSM/Fine Foods in Berkeley to purchase rolling papers. A proposed ordinance would ban the sale of tobacco products within 1,000 feet of schools or parks. The store is located near ... more

But that inventory could soon be snuffed out if the Berkeley City Council adopts the nation’s most stringent buffer zone to shield schoolchildren from tobacco.

A new proposed ordinance would prohibit the sale of tobacco goods within 1,000 feet of any school or public park in Berkeley and require anyone selling e-cigarettes to obtain a tobacco retailer’s license. Modeled after a Chicago law that created 500-foot “buffer zones,” Berkeley’s version is more sweeping and applies to many more products.

If passed by the City Council on May 12, it would turn tobacco into an obscure, big-ticket item, since the proposed buffer zones would encompass most of the city’s commercial districts. It would also make the sale of cigarettes more restrictive than that of medical marijuana, given that cannabis clubs are allowed to operate within 600 feet of any school in Berkeley.

“There are no medical benefits to tobacco,” said Councilman Darryl Moore, who supports the buffer-zone ordinance. “I think it’s different.”

Though it’s won some political support, the proposal has raised eyebrows among Berkeley’s licensed tobacco retailers, who put thousands of dollars into city coffers annually — including $42,330 from tobacco licenses alone. Many of them say the law would cripple their businesses.

“I think we’d have to close,” said Mohammed Alajji, who runs Fine Stop, a tiny storefront on Berkeley Square, with his father and brother. Tobacco sales account for roughly half of the store’s revenue, and many customers who walk in to buy cigarettes also wind up with a soda or a bag of chips.

If the store shutters, then three families would lose their livelihoods, Alajji said.

He’s one of several merchants who’ve spoken out against the ordinance, arguing that it unfairly impacts the mostly immigrant-owned, mom-and-pop shops that depend largely on tobacco and alcohol sales for income. About 80 percent of them operate within the proposed buffer zones, according to data provided by the city. Berkeley officials would give those shop owners a two-year window to sell their tobacco inventory and adjust their businesses, or consider relocating.

Soda tax’s impact

Many store owners say they’ve already been wounded by the city’s other health-conscious policies. When voters passed a well-intentioned soda tax in November, Ashby Super Market owner Andre Houssain said he faced a deluge of customer complaints. He worries that some patrons are drifting over to nearby Emeryville and Oakland, where they won’t see a penny-per-ounce markup at the register.

“I don’t sell meat, beer, wine or liquor,” Houssain said. “If they take away cigarettes, I won’t have a business anymore.”

When a small army of shop owners showed up to denounce the draft ordinance at a City Council meeting this month, Berkeley politicos found themselves in an awkward position.

“It hadn’t computed to me that it was going to have this kind of impact,” Councilwoman Linda Maio said in an interview later. As an ex-smoker with a compromised immune system, Maio is bullish about fighting the tobacco industry. But she also sees a need to balance the city’s public health goals with its empathy toward small businesses.

Striking a balance

Balance is tricky in Berkeley, which has long led the battle against junk food, high fructose corn syrup and secondhand smoke. In 2008, it banned cigarettes on all commercial sidewalks, and in May 2014 it outlawed smoking in any multiunit housing complex. In November, it became the first city to prevail against Big Soda, which, like Big Tobacco had become a bete noire.

Maio sees the proposed buffer zones as part of an ongoing crusade. She hopes they’ll help stamp out youth smoking in Berkeley, while discouraging many casual adult smokers.

Tom Briant, executive director and legal counsel for the National Association of Tobacco Outlets Inc., says the ordinance goes way too far.

“This is prohibition disguised as regulation,” Briant said. He deems the buffer zones redundant, since California already forbids merchants to sell cigarettes to minors. Regulators have conducted 61 compliance checks in Berkeley over the last four years, and only one store failed, Briant said. He believes that if the new law passes, businesses could sue the city for stripping their right to sell legal products.

Supporter concerned

The specter of a lawsuit doesn’t bother Moore, who has long advocated for a flavored-cigarette ban to emulate the one in Chicago. But Councilman Jesse Arreguin, who conceived the buffer-zone idea in 2010, says he’s now having second thoughts.

“I think this recommendation meets the spirit of what we were trying to accomplish, but it’s too restrictive,” Arreguin said.

Still, Arreguin is hopeful that the city will come up with a more moderate version of the law, perhaps by making its tobacco buffers commensurate with the ones for marijuana.

Moore rebuffed that idea, and called it a “sad commentary” that so many convenience stores depend on tobacco revenue to stay afloat.